Standing Committee B

[Mr. Roger Gale in the Chair]

Sexual Offences Bill [Lords]

Clause 58 - Trafficking into the UK for sexual exploitation

Amendment proposed [this day]: No. 182, in 
clause 58, page 29, line 12, at end insert— 
 '( ) a person who has been subject to trafficking into the UK for sexual exploitation shall be granted humanitarian protection.'.—[Sandra Gidley.]
 Question again proposed, That the amendment be made.

Neil Gerrard: This morning, I made clear my welcome for the trafficking clauses and the amendment tabled by the hon. Member for Romsey (Sandra Gidley). While I accept that it may not be possible in each case to grant humanitarian protection under the law, we support the intent of the amendment.
 There is no question but that trafficking for prostitution has become an extremely profitable activity. It is now estimated that it is as profitable as drug dealing and we are all well aware of the vast sums that are made from that. In 2000, the police undertook a research project. When they checked on 50 flats in Soho, they found 148 women, nearly all of whom were from outside the United Kingdom—in fact, 125 of them were from the Balkans. That so many of the women were from one relatively small region is a clear sign of how organised the trafficking is and how well prepared the gangs involved are. 
 If we are to get to the people who run the gangs, it is vital that we persuade some of the women who have been trafficked to give evidence against them. They will not do so if they are frightened about what will happen to them, especially if they think that they will be sent back to where they came from, which is obviously where the gangsters are operating. The Home Office has undertaken work on the issue. It has funded a pilot study to provide safe houses, and I hope that that study will be expanded. My hon. Friend the Member for Northampton, North (Ms Keeble) cannot attend the beginning of our proceedings this afternoon, but she has asked me to mention Project Paladin, which the Home Office has been operating at Heathrow. She is extremely impressed by it and is trying to track down what happened to the children who were brought into the United Kingdom. 
 The key to the problem is to ensure that we treat people who are victims as victims, even if they are adult and even if, in some cases, they knew that they were not coming to this country legally, but did not know what they were being brought here to do, how 
 they would be treated when they arrived and that, in essence, they would become slaves. 
 Although the Minister might not accept the amendment, I hope that we shall receive a positive response to the issues with which it deals. If we are to crack the business, it is critical to persuade some of those who have been trafficked—the victims—that they will receive support and protection if they give evidence that leads us to the people who are responsible for such an extremely nasty but profitable trade.

Annette Brooke: I thank the Under-Secretary for his letter detailing the humanitarian aid that is already available. On Second Reading, several hon. Members spoke about the need for a six-month period of reflection. Evidence shows that, in countries in which that is available, there are more effective prosecutions. I understand that giving people a temporary residence permit might be outside asylum channels, and that the Government might well be nervous about that. However, such nervousness has to be balanced against the need to crack down on this terrible crime.
 I had the privilege of visiting Moldova with UNICEF. I went to a refuge where returnees were being looked after for a few weeks. It was incredibly distressing to see some of the ladies and their great needs right across the board, including their need for medical and mental care. It was horrendous to see the state in which the women had been returned. As with any problem, we have a duty to tackle it from all ends. As the demand comes from our country, we have a big responsibility to play our part in tackling the crime. We can play our full role by permitting such ladies to stay longer, so that they are not tempted straight back into the profession or driven underground by the threats that are undoubtedly made, and so that there can be effective prosecutions. 
 I was told in Moldova that it was more helpful, in terms of giving support, if trafficked ladies were repatriated, as opposed to deported. The charities made that point strongly, and I now place that point on the record. Obviously, repatriation at least gives people a chance to go into the sort of refuge that I visited. Sadly, although the refuge was carrying out some tremendous work, it could do so only for a few weeks. When I was there, the children and adults were kept together, but that will be remedied. 
 I was told that it was quite likely that 90 per cent. of those returnee women would go back into the cycle again. We have a responsibility, given our relatively affluent position, to some sender countries to see what we can do to break the cycle. I have a further request that we consider a six-month period of reflection.

Beverley Hughes: I accept the points made at the beginning of the debate. The hon. Member for Romsey talked about humanitarian protection but did not define that. However, she says she wants to stimulate wider debate on the issue and find out what is being done, and I fully accept that.
 I also fully agree that victims of trafficking should be protected and treated appropriately, particularly 
 while their cases are going through court—they can feel very vulnerable then—when we are determining their future with them, and when we are considering the provision of services to support them. Hon. Members will know as a result of the correspondence to which they referred that a great deal is going on; it was all set out in the White Paper in February last year. 
 Our objective was to take a four-pronged approach, covering: the creation of appropriate offences in legislation; enforcement; victim protection; and international co-operation to enable us to get back down the chain and disrupt the organised criminals trafficking people into the country. Obviously, only the first of those requires legislation, which is why we acted as quickly as we could to get offences covering trafficking on to the statute book, first in the Nationality, Immigration and Asylum Act 2002, and then in this Bill. The other provisions, including those for victim protection and enforcement, do not need legislative provision, and much has already happened. 
 The hon. Member for Mid-Dorset and North Poole (Mrs. Brooke) mentioned the provision of an automatic reflection period for victims of trafficking, and arrangements for returning people to their countries. I have been to the project and talked to some of the women supported by the Home Office-funded scheme, and it is an erroneous assumption that everybody who has been trafficked in and subjected to sexual exploitation wants to stay here. Many of them have children back in their own country, and many say that, as a result of their experiences, this is the last place that they want to stay. It depends very much on individual circumstances and what individuals—mainly women—say. 
 The pilot project provides a period of time to enable women, in the first phase of our contact with them, to make an informed decision on whether to co-operate with the police. There are different considerations in relation to children, who will not be returned to their country of origin unless robust arrangements are in place for their safety. 
 We have consistently rejected the idea of a statutory reflection period for victims, partly because that would be inflexible and not necessarily based on the details of the case, which can vary. We must balance the issues presented by victims with some of the wider issues about successfully detecting and prosecuting people who are plying this terrible trade. That is the only sustainable way to prevent other people from being trafficked in future. A statutory reflection period risks becoming a perverse incentive for people to come in via people smugglers and claim to be the victims of people traffickers—I am grateful to my hon. Friend the Member for Walthamstow (Mr. Gerrard) for making that distinction earlier. That makes it much more difficult to identify, help and protect those people who really are the victims of traffickers. We must ensure that we do not build in an incentive for people to use that route, which gives protection to people who come in illegally and who might stay here. 
 In addition to the physical protection and support going on under the pilot project, we have produced 
 what is referred to as a toolkit for practitioners, although that term does not do it justice. It is a comprehensive attempt to bring together the best practice that is continually evolving, and to disseminate it to immigration officers, the police and other agencies to help them to identify and to work with victims in an appropriate and sensitive way. Such awareness-raising is important. 
 Early on in the pilot, we discovered that it is difficult getting enough referrals, even for places that we have provided, partly because women find it difficult to disclose. There were stories from women about being taken to sexual health clinics by their controllers, who would sit outside the consulting room door until the woman came out. Some women were able to disclose in the end, but only after a great deal of work and courage on their part. The ability of victims to feel safe in disclosing, so that referrals can be made is therefore important. It is also important that practitioners are available in all those places—or outlets, if you like—where victims might be allowed to go, so that they can pick up when something is wrong and provide the opportunity for disclosure. Raising awareness is critical to helping people to identify issues. 
 I am pleased that my hon. Friend the Member for Walthamstow mentioned Project Paladin. Immigration and Metropolitan police work jointly at key principal entry points to identify children at risk. Unfortunately, relatively significant numbers of children come into this country unaccompanied. That is a serious worry. The child protection pilot project was launched in March at Heathrow and involves one child protection officer working closely with immigration officers to disseminate child protection expertise in all kinds of ways, and not just in dealing with a child effectively once there is serious cause for concern. For instance, the ordinary immigration interview with a child is conducted in a way that is sensitive to the age-related needs of the child and to lines of inquiry that might be pursued to examine the possibility of there being a child protection issue.

Sally Keeble: I spent a day at Heathrow looking at the workings of that project. I was extremely impressed. The information that it provides—not only about children being trafficked for sexual exploitation—will be incredibly important. Will the Minister of State ensure that the findings are implemented across the child care system, so that other Departments can also reap the benefits of this important work?

Beverley Hughes: Yes, I can assure my hon. Friend of that. That is why we are proceeding as we are. The pilot is still being evaluated, but we want to apply the lessons of it nationally and to ensure that it takes place everywhere it is needed.
 Intake teams have also been piloted at Dover as joint initiatives between the immigration service and social services. They will be extended to other ports, and to the Croydon and Solihull asylum screening units. Kent police have seconded a trained child protection officer to the joint immigration service 
 and police debriefing team based at Dover, and it is hoped that there will shortly be two permanent officers. 
 A lot is happening in respect of both adults and children. I hope that I have demonstrated that we take the trafficking of people, and especially of children, as seriously as do many hon. Members.

Hilton Dawson: It is good to hear that there is such progress at ports. I hope that that will be developed in future. However, is there not a serious gap in terms of the services that we are able to offer to young people who have been trafficked? We have seen alarming statistics about children who have left the safe house project in West Sussex: I presume that they have gone straight back into the hands of traffickers. Can we not do more?

Beverley Hughes: My hon. Friend makes another important point. Views have been expressed about the closure of that safe house. There is a range of opinions among child care workers and immigration and police officers about the advisability of putting together in one place children who have experienced trafficking and/or sexual exploitation. One opinion is that when young people have been trafficked from a foreign country and speak a different language, and that is overlaid by the terrible experience of being subjected to enforced sexual exploitation, that increases the level of complexity of dealing with them above even the norm for sexually abused children in this country. On the other hand, there is a view that putting such children together makes them easily identifiable and allows the traffickers who brought them in to the country to keep their hooks into them and to get control of them. As my hon. Friend knows, a number of children absconded or were persuaded to leave that safe house. There is a fear that, at least in some of those cases, they left as a result of contact being made because their location was very visible and became known.

Sandra Gidley: I took part in an Adjournment debate on this subject a few months ago, and it is my recollection that that safe house was set up because Sussex social workers became aware that children were disappearing. At that stage, it was felt that it would be better for them to be kept in one place where the social workers could keep an eye on them and monitor the situation. What precautions are being taken to ensure that the children are dispersed and that we do not revert to the previous situation in which the children—usually Nigerian, I think—were trafficked, if memory serves, to Italy? I think that we are going round in circles.

Beverley Hughes: That just reflects the nature of the children's situation when they are trafficked into the country and the hold that the traffickers can have over them. It is difficult always to cut through that control and to stop the traffickers persuading children to come back. Some children were lost from that project. An important lesson to learn from it is that child care practitioners need the additional knowledge and expertise that dealing with those young people demands. One advantage of the safe house was that it allowed the people working there to develop best practice and that special expertise. It is important that, as we help local authorities to deal with the matter, we
 continue to disseminate that learning and the extra skills that those people acquired.
 My hon. Friend the Member for Walthamstow said that we had to be strong on all fronts if we were to crack the problem. It is important that we protect victims and get them to help us so that we use the information they provide to prosecute traffickers when we can, and disrupt their activities when we cannot. Perhaps in that way we can prevent those who may not yet have been trafficked from being trafficked by the same people in future. We have to balance those two important objectives continually.

Neil Gerrard: Other hon. Members and I mentioned that the legislation does not include trafficking for labour, which is a serious problem. I appreciate that there may be difficulties in including that in the Sexual Offences Bill, but will my hon. Friend say whether the Home Office is looking at that issue and whether we should try to address the problem in other legislation?

Roger Gale: Order. That would fall outside the scope of the Bill, but I am prepared to allow the Minister of State to respond briefly, if she wishes.

Beverley Hughes: That point is outside the scope of the Bill, but I assure my hon. Friend that we are actively considering the issue. As soon as there is legislative opportunity, it will be included.

Sandra Gidley: Clearly, we did not go far enough with our amendments. I apologise for tabling an amendment that did not clarify exactly what we meant by humanitarian aid. The purpose of the amendment was to help us to consider what was going on and plans for the future.
 My hon. Friend the Member for Mid-Dorset and North Poole mentioned the period of reflection. Clearly, we would not make people stay for six months if they did not want to stay; that would be ridiculous. Experience from other countries shows that where there is a period of reflection, a great number of women choose to return in that period, perhaps having had the chance to get treatment or to sort out things back home. As the Minister rightly said, for many of the women in question, the United Kingdom is not home. They are here under duress and are forced to send money home, not always of their own free will. 
 I was a little concerned when the Minister started talking about loopholes and incentives and whether we could be creating a route for illegal immigrants. I become concerned when I hear that sort of argument used as an excuse for not providing humanitarian aid. The United Kingdom has signed up to the optional protocol to the UN convention against transnational organised crime to prevent, suppress and punish trafficking in persons, especially women and children. Article 6 states: 
''Each State Party shall consider implementing measures to provide for the physical, psychological and social recovery of victims of trafficking''—
 I admit that ''consider'' is a weasel word. Although I welcome the steps the Government have taken, I am aware that they have not ratified the Palermo protocol. They cannot, for example, say that they are fully complying with article 6. We might wish to revisit that 
 in more detail on Report, when there is a bit more meat on the bones. 
 The Minister mentioned outreach work. I referred earlier to my visit to Italy. There are projects in Rome in which people working with sex workers hand out cards in different languages to try to make people aware that there are places they can go if they are victims. There is also a helpline—interestingly, I was told that often clients who felt sorry for the people working as prostitutes phoned that line and alerted the authorities to something that was going on. Perhaps we could consider that in future. 
 I am only partially reassured. Nevertheless, I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 The Chairman, Being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause, as amended, stand part of the Bill. 
 Question agreed to. 
 Clause 58, as amended, ordered to stand part of the Bill.

Clause 59 - Trafficking within the UK

Amendment made: No. 94, in 
clause 59, page 29, line 14, leave out '(A)'.—[Beverley Hughes.]
 Clause 59, as amended, ordered to stand part of the Bill.

Clause 60 - Trafficking out of the UK

Amendment made: No. 95, in 
clause 60, page 29, line 29, leave out '(A)'.—[Beverley Hughes.]
 Clause 60, as amended, ordered to stand part of the Bill.

Clause 61 - Sections 58 to 60: interpretation and jurisdiction

Question proposed, That the clause stand part of the Bill.

Neil Gerrard: I shall be brief. I may not have read the clause correctly. It defines relevant offences and who is caught under the provisions of clauses 58 to 60. Subsection (2) makes it clear that the offences in those clauses would apply to anything that was done in the UK, and to certain acts that were committed outside it. It is quite clear that offences such as arranging or facilitating travel within or out of the UK could be committed by someone outside the UK.
 If I understand subsections (2) and (3) correctly, when taken together they imply that if something is done 
''outside the United Kingdom, by a body incorporated under the law of a part of the United Kingdom or by an individual to whom subsection (3) applies''—
 subsection (3) applies only to British citizens and nationals, and so forth—it would be difficult to do anything directly in respect of a foreign national who arranges and facilitates trafficking from outside the UK. If a person who previously did something outside the UK entered the UK, would what they had done outside the UK constitute an offence even if they did not do anything in the UK? Is there a loophole?

Humfrey Malins: Clause 61(3) refers to various categories of people. Will the Minister consider clause 73(2), which includes as possible defendants a slightly different category of person? Someone who is resident in the United Kingdom is an offender under that clause, but not under clause 61(3).

Beverley Hughes: To respond to the question of my hon. Friend the Member for Walthamstow, clause 61(2) and (3), which applies to international trafficking, means that we can prosecute a British person listed under subsection (3), or an organisation listed under subsection (2)(b), who carries out such activity in any country, whether or not there is an equivalent trafficking offence in that country. If a foreign national commits an offence in the United Kingdom, we can prosecute that person. However, we cannot prosecute a foreign national who commits an offence in another part of the world. As for clause 73, a resident is covered because there is a requirement for dual criminality in such cases. There is no such requirement in relation to the trafficking offences, which is partly why we have drafted such a provision under clause 61.

Neil Gerrard: Obviously, I understand the problems of trying to prosecute someone in another country. He would not be within our jurisdiction. I am worried about a foreign national in another country who has been acting in a way that would constitute an offence under the Bill and who is involved in trafficking. Let us suppose that that person enters the United Kingdom and, although he does not commit offences under the Bill while is here, we know that he had been involved in such offences in the past. I can imagine the potential for headlines in the press if such an event occurred and we were unable to touch that person when he arrived here.

Beverley Hughes: If we did not have evidence that that person came into country, continued his activities and had connections with people here, which he probably would have in the circumstances described by my hon. Friend, we could not prosecute him. However, because of the strong networks in which such people are involved, if that person had been involved extensively in trafficking elsewhere in the world, it is highly likely that he would be entering this country for a similar purpose. Given the strict limits of the hypothetical situation highlighted by my hon. Friend, it would not be possible to prosecute the person unless we had the appropriate evidence. If another country asked us to extradite him for the activities he had carried out there, we could do so.
 Question put and agreed to. 
 Clause 61 ordered to stand part of the Bill. 
 Clauses 62 to 64 ordered to stand part of the Bill.

Clause 67 - Sexual activity in a public lavatory

Paul Goggins: I beg to move amendment No. 118, in
clause 67, page 32, line 32, leave out 'public lavatory' and insert 
 'lavatory to which the public or a section of the public has or is permitted to have access, whether on payment or otherwise,'.

Roger Gale: With this it will be convenient to discuss the following:
 Amendment No. 227, in 
clause 67, page 32, line 33, leave out paragraph (b).
 Government amendments Nos. 119 and 120. 
 Amendment No. 228, in 
clause 67, page 32, line 35, leave out subsection (2).
 Government amendments Nos. 121 and 122. 
 Amendment No. 229, in 
clause 67, page 33, line 6, leave out paragraph (b).

Paul Goggins: We come now to the famous, or infamous, clause 67, which covers the offence of sexual activity in a public lavatory. When the issue was debated in the other House, the Government were defeated and clause 67 was inserted into the Bill.
 The Government had a choice. We could have returned here with an amendment that would have knocked the clause out of the Bill. We have chosen not to do that. The Government amendments in this group are designed to make clause 67 workable and to remove the option of trial on indictment and the maximum penalty of two years imprisonment attached to it. 
 Clause 67 has a long and complex history, and I do not intend to go through it this afternoon. However, I shall make one thing clear: the Government's policy on sexual activity in public lavatories is that we are against it, lest there be any doubt about that. Toilets are built for other purposes, and those who want to use them for those purposes should be free to do so without having to witness sexual behaviour that ought properly to take place in private. It is unacceptable, whoever is engaging in it and whatever their sexual orientation. That has always been, and remains, the Government's policy. Section 5 of the Public Order Act 1986 and the common law offence of outraging public decency are capable of covering this behaviour where it causes harassment, alarm, distress or offence. We listened to those who argued that it was important that the law sent out a specific message that sexual activity in public toilets is illegal.

Chris Bryant: In which case, why is it not illegal to have sex in the park immediately outside a public toilet? That does not make sense.

Paul Goggins: There is a long and complex history to this clause. The difficulty in going down the route that my hon. Friend tempts me with is that there may
 then be some doubt as to whether the Government think that sexual activity in a public lavatory is not okay. We do not think that it is okay. We have therefore decided to send out a clear signal. The Government already have a strategy that would deal with sexual activity in a public toilet, but through this clause we are adding a further offence and further powers, so that there is no doubt that sexual activity in a public lavatory is not acceptable.
 The offence in the Public Order Act 1986, as well the common law offence of outraging public decency, will remain in force. As my hon. Friend the Member for Rhondda (Mr. Bryant) and other Committee members know, an amendment to the Criminal Justice Bill makes the latter offence triable either way. That amendment makes the offence more flexible and thus more usable in practice. I ask for your forbearance, Mr. Gale, and for the patience of Committee members as I try to put the jigsaw back together again by referring to the various Government amendments before us. 
 Amendment No. 118 removes the reference to ''public lavatory'' in subsection (1)(a) and inserts the full definition of public lavatory in that subsection. Amendment No. 121 deletes the definition in subsection (3) because it is clearer to have it in subsection (1)—the definition remains absolutely the same. Government amendment No. 119 substitutes the words in subsection (1)(b) that an offence is committed if a person engages in ''activity within subsection (2)'' for ''an activity''. Paragraph (c) specifies that it is a sexual activity. That paves the way to deleting subsection (2), which specifies the sexual acts covered by the clause. 
 Subsection (2) is the crux of why we consider the current clause 67 unworkable. It would be difficult to prove that any one of the specified sexual activities had actually taken place when the activity took place behind a close cubicle door.

Humfrey Malins: Perhaps the hon. Gentleman agrees that, in addition, there is a number of other sexual activities not mentioned that might be equally abhorrent.

Paul Goggins: Indeed, the hon. Gentleman is right.
 Government amendment No. 120 deletes subsection (2), which specifies the activities covered by the clause, and replaces it with a new definition of sexual activity. It is important to emphasise that that definition differs from the general definition under clause 79 because it excludes activity that a reasonable person would think was sexual only if they knew the purpose of the person engaging in it. It therefore captures only explicitly sexual activity, excluding any behaviour that is ambiguous in its nature and circumstances. 
 We believe that removing the reference to specified sexual acts will help considerably in making the clause more workable in practice, because it will make it possible to conclude that sexual activity is taking place from what can be heard, as well as from what can be seen, and from surrounding behaviour. Moreover, it will require proof that sexual activity of some kind is taking place but does not require a person to say which of a list of specified acts is involved. 
 Government amendment No. 121 deletes the subsection that defines ''public lavatory'', as Government amendment No. 118 has made that unnecessary. Government amendment No. 122 would specify that the maximum fine on summary conviction was level 5 on the standard scale, rather than the statutory maximum fine. That is a matter of drafting to make the Bill consistent with other legislation and is not a significant change. 
 Government amendment No. 122 would remove the possibility of trial on indictment and the maximum prison sentence of two years that flows from it. Although we believe that sexual activity in public toilets is wrong, we are not persuaded that it merits being dealt with at the Crown court or that a maximum sentence of two years is proportionate to the behaviour involved. 
 Where the behaviour is such as to constitute outraging public decency, an unlimited prison sentence is available, subject to that not being disproportionate to the behaviour engaged in. We take the view that a maximum penalty of six months imprisonment and/or a fine is the appropriate maximum sentence. 
 I commend the amendments to the Committee as the sensible way forward, making the clause workable but also making it absolutely clear that we are against sexual activity in public toilets.

Stephen Hesford: Can my hon. Friend the Under-Secretary describe any behaviour that would come under the term of outraging public decency, and so require a larger maximum penalty, which would not ordinarily be caught by the offence in the clause?

Paul Goggins: I simply invite my hon. Friend to imagine a set of sexual activities, some of which are more serious and outrageous than others. Indeed, the more outrageous, the more likely it will be captured by the offence of outraging public decency. Activities of a less outrageous, less serious nature might be more appropriately dealt with under the clause.
 I think that I should sit down and let those who wish to contribute to the debate do so.

Dominic Grieve: May I say how much I welcome the approach that the Government have taken on this subject? There was a lot of public comment and, dare I say, hot air when the amendment was tabled in the Lords, and the fact that the Government were prepared to consider the matter, rather than simply come to Committee asking us to delete the clause—as appeared would be the case at one stage—is greatly to their credit.
 The way in which the Government have approached the matter is correct; that is, they are simplifying what the other place sought to do. I have no difficulty with the simplification, or with the removal of subsection (2). Indeed, I also believe that the Under-Secretary is right that the offence should be summary only, as plenty of other offences are available. The message that we need to send out is that sexual activity in public lavatories is unacceptable, 
 irrespective of whether it is behind the cubicle door, because that is not the purpose for which public lavatories were provided. I think that a summary offence is sufficient to get that message across. 
 Our amendments are probing amendments and, as the Under-Secretary may have noticed, they move in the same direction as his, although they do not do so as well as his. Our amendments include making the offence summary only and deleting subsection (2), which we thought took a rather convoluted approach to the matter. 
 There is one aspect of what has been done that I still find slightly more difficult. That might be because I did not understand the Under-Secretary's brief explanation of amendment No. 120. It supplies a definition: 
''For the purposes of this section, an activity is sexual if a reasonable person would, in all the circumstances but regardless of any person's purpose, consider it to be sexual.''
 From that, I assume that, if a person can explain that although it might have appeared to be sexual the purpose was otherwise, he would be acquitted—or would that have to be disregarded? The amendment is curiously worded. Although I was totally satisfied by the Under-Secretary's explanation, I then looked again at the amendment and I found it difficult to match what he had said with what I was reading. 
 Provided that the Under-Secretary can reassure me on that, and I hope that he can, I wish simply to reiterate that I greatly welcome the Government's approach and I will not oppose their amendments.

Annette Brooke: I, too, think that the amendments would improve the Bill. The Liberal Democrats in the other place found that they could not support the measure, and wanted the entire issue to be dealt with as a public order offence. We are happy to have discussions about the way forward, but I think that everybody is clear that sexual activity in public toilets is unacceptable. They are for the community, and they must be available at all times to everybody, including children. That is very important.
 It was kind of the Under-Secretary to hold a meeting with my hon. Friends the Members for Romsey and for Southwark, North and Bermondsey (Simon Hughes) and I. We asked for the matter to be incorporated into the Criminal Justice Bill as a public order offence. The Under-Secretary explained that that option had been explored, but that it was not possible. We accept that, but we still feel that the way to deal with this issue is through separate legislation as a public order offence. We appreciate that that would take time, and that now that the issue has been raised there is at least some wisdom in proceeding with the Bill until something better can be put in place. Will the Under-Secretary consider the introduction of future legislation to put the offence into a better context as a public order offence? I would be happy for him to write to me about that. 
 Because we believe that the problem should be dealt with in this way, we wonder whether the amendments should have included the words ''causing harassment, alarm and distress''. We understand that that would be 
 a test in a public offence case. If we accept the clause at this stage, it is as a step towards a better way of tackling the problem. 
 I have been concerned about the interpretation of the word ''sexual'' in this context. I do not want to embarrass the Under-Secretary, but it would be helpful if he placed on the record where there are some dividing lines. This question was raised with me: ''Does sexual in this context include a chaste kiss?'' I presume that it does not.

Paul Beresford: Chased around the room!

Annette Brooke: I assume that the drawbridge—as it were—comes up if there is stronger kissing. However, there are greetings and affectionate touches that are not necessarily sexual. We must be clear about that. We do not always match being affectionate with a sexual move. I ask the Under-Secretary to contemplate that.
 Amended, the clause will be a massive improvement on what we were faced with in the first instance, so we will not oppose the amendments. However, I place on record that we do not regard it as the permanent solution to the issue that we are considering.

Chris Bryant: Along with all hon. Members, I do not defend sex in public lavatories. No part of the community has argued that case from the moment when it was determined that the Bill should contain a clause making explicit the prohibition of sex in public toilets. I do not think that anyone argued that it was legitimate for people to engage in sex in public toilets, even during the hefty debates in the House of Lords.
 However, the clause is unnecessary and discriminatory. Curiously enough, it is worth bearing in mind that the clause is the only remaining specific legislation relating to homosexual acts. Although the clause itself does not refer to homosexual acts, most hon. Members would accept that it is included because homosexual men engage in sex in public toilets. The cottaging phenomenon was referred to at considerable length in the House of Lords debate, which has given us much of the wording in the clause.

Dominic Grieve: In my view, that that is not why the clause is included. I remember an instance from my time as a barrister—I alluded to it on Second Reading—of activities in the public lavatory of a court in this country, where a girl wished to give her boyfriend a good time before he was sent down for two years. I remember the disturbance that was caused and what resulted from it. I assure the hon. Gentleman that the clause is not aimed at homosexual practices. It is aimed at any sexual activity in a public lavatory, whatever form that may take, between people of either gender.

Chris Bryant: I am absolutely certain that the hon. Gentleman has no desire to use the clause to target homosexuals. The truth of the matter is, however, that if it were not for the practices that were referred to in the House of Lords, which were all to do with homosexual cottaging, the clause would not have got on to the front page of the Daily Mail and back into the Bill.
 Although I hate to do it, one can discuss the long-term provenance of the clause starting in 1533, when Henry VIII made it explicit for the first time in British law that buggery should be illegal. The law was changed in 1630, when the Earl of Castlehaven was convicted of buggery, despite none having occurred, merely because there was evidence of emission. In other words, sex between two men has been illegal since 1630. 
 The major change that resulted in the current version of the clause happened when the Criminal Law Amendment Act 1885 was being dealt with by the House. At the very last moment, Labouchere tabled an amendment, which is known nowadays by many people as the Labouchere amendment. It said: 
''Any male person who, in public or private, commits, or is a party to the commission of, or procures, or attempts to procure the commission by any male person of, any act of gross indecency shall be guilty of misdemeanour, and being convicted shall be liable at the discretion of the Court to be imprisoned for any term not exceeding two years, with or without hard labour.''
 That was inserted into a Bill that was solely about the rights of young women and the abuse thereof. None the less, it was agreed late one night. It became known as the blackmailer's charter, because for the first time British law contained the phrase: 
''Any male person who, in public or private''.
 In Victorian society it was felt that people could make up any event that might or might not have happened. Indeed, there was a raft of prosecutions under that clause, the most notable being Oscar Wilde's being sentenced to two years hard labour in 1895. 
 Many hon. Members will be saying to themselves, ''Of course, the clause refers to the offence of gross indecency, which we are getting rid of''. That is certainly one of the provisions that will be repealed under the Bill. However, section 12 of the Sexual Offences Act 1956—the buggery clause, which was amended in 1994—set out for the first time an explicit reference to sex in public toilets. It is a direct translation of the original Labouchere amendment into the 1956 Act. The legislation was amended in 1994 to allow buggery in private, but privacy was determined solely to mean when not more than two people were involved and when the buggery was not taking place in a public lavatory. Section 13 of the 1956 Act continued the other half of the Labouchere amendment on gross indecency between men, whether in public or private. 
 That was changed under section 1 of the Sexual Offences Act 1967, whereby a consenting act between two men in private was allowed. That provision was introduced by Leo Abse and supported by the then Labour Government. Subsequently, the age of consent was changed from 21 to 18, and it is now 16. The 1967 Act incorporated sections 12 and 13 of the 1956 Act and made it explicit that, for an act to be in private, it had to involve no more than two people and could not take place in a public lavatory. The provenance of the clause under discussion is the desire to maintain that legislation, relating as it does to the 1885 Labouchere clause. 
 The clause is discriminatory. While I have enormous respect for the Government in light of all 
 the changes that they are proposing and for their attempt to make the Bill not discriminatory, what makes it discriminatory is that the majority of public toilets in this country are unisex. That means that the public lavatories on the street are places that may be used by two men or two women at the same time. I have searched in vain to find cases in which two women have been prosecuted for having sex in a public toilet. There are a few instances of sex in public toilets being prosecuted under other legislation, but usually the prosecution comes under the Public Order Act 1986. 
 My second point is that the clause is wholly unnecessary. The Public Order Act can deal perfectly well with each case of sex in a public lavatory. There is no need for specific legislation to bar sex inside a public lavatory.

Julie Kirkbride: I am grateful to the hon. Gentleman for giving way. I hope that he will forgive me for saying that he is being a little over-sensitive in his historical description and with regard to what he rightly points out is discrimination against homosexual people. He asked what the difference was between doing it in a lavatory and doing it in the park. While it is clearly obvious to everyone when people are having sex in a park, it is not quite so obvious in a semi-private place, such as a public lavatory. We want public lavatories to be semi-private; otherwise, we would not want to do our business in them. It must be made clear that the Public Order Act should still apply to such places and that people should not be having sex in them.

Chris Bryant: The hon. Lady has given the game away by pointing out that a public lavatory is semi-private, whereas someone engaging in sex in a public place is likely to cause more alarm and distress. For example, I have just moved house, but until April I lived in a house at the top of a country lane in the Rhondda. Most nights when I came home, two or three cars would be parked outside my front gate. The area was widely known as lovers' lane. Such activity did not cause me much offence and I did not do anything about it, but it could have caused offence to others if they had lived in that house and such behaviour was troublesome to them.
 Those in the second Chamber made the same point about sex in public toilets when they referred to the element of distress that is caused not by the nature of the sex, but by the fact that it takes place. Again, people parked outside my house, or those making love in St. James's park by the bandstand or—as I understand happened before my time at the House—in the showers at the House of Commons a few years ago would be subject to the Criminal Justice and Public Order Act 1994. I believe that we should use that Act for cases of sex in public toilets, rather than have a specific clause in the Bill.

Dominic Grieve: The hon. Gentleman knows the distinction between the Public Order Act and the clause: the Act requires an element of proof about the
 disturbance to public order and the clause represents a blanket prohibition. What is wrong with a blanket prohibition on sex in public lavatories if the Committee considers that they are not places where people should engage in sexual activity? That is the issue and that is what troubled those in the other place. Once we have put this legislation into the shape that the Government propose, nobody on the Committee should have difficulty with the principle underlying the clause.

Chris Bryant: I regularly go home on the No. 38 bus and I do not particularly like seeing people having sex at the top of that bus late at night. However, I do not think that we should pass a clause saying that there should be no sex at the top of the No. 38 bus.

Julie Kirkbride: That would be covered by the Public Order Act.

Chris Bryant: It would, so there is no need to have a specific clause in the Bill outlawing sex in public toilets.

Stephen Hesford: Regardless of gender, if the clause were passed and citizens took the law at face value and did not engage in sexual activity in a public lavatory, there would be no discrimination against anybody.

Chris Bryant: My hon. Friend has caught me unawares with his argument. I am not sure what he means or intends by it, so I confess that I am somewhat lost.

Julie Kirkbride: He is right.

Chris Bryant: The hon. Lady says that my hon. Friend is right.

Stephen Hesford: If people abided by the law and did not have sex in a public lavatory, the clause would not discriminate against anybody.

Chris Bryant: Indeed, but there is no need for the Bill to include an unnecessary clause when the offence in question is already covered elsewhere. The only element of the clause that is distinctive, as the hon. Member for Beaconsfield (Mr. Grieve) pointed out, is the fact that the offence in question would be happening in a public lavatory. My question is merely whether having sex in a public lavatory is worse per se than having sex immediately outside a public lavatory, in a public shower, in swimming baths or anywhere else.

Dominic Grieve: The hon. Gentleman has missed the point. What troubled those in the other place was that it would be possible to have sexual activity in a public lavatory, in a cubicle and therefore not visibly, that could escape the scope of the Public Order Act in certain circumstances. It was their anxiety about that and the fact that they considered it extremely undesirable that public lavatories should be used for sexual activity, whether behind the cubicle door or anywhere else, that led them to propose the clause. On that I agree with those in the other place. I got the impression that most Committee members, including perhaps the hon. Gentleman, also accepted that that was correct as a principle.

Chris Bryant: There are large numbers of places where I do not wish people to have sex. For instance, people might have sex behind trees in St. James's park,
 but I do not believe that that means that we should have an explicit clause outlawing sex behind trees in public parks.

Julie Kirkbride: Will the hon. Gentleman give way?

Chris Bryant: I will happily give way, but I think that I ought to make some progress.

Julie Kirkbride: Further to the point made my hon. Friend the Member for Beaconsfield, if the provision were not in the Bill there could be circumstances in which lawyers could argue using existing provisions that sex in a public lavatory with the door closed would be sex in a private place and therefore okay. That does not equate with the hon. Gentleman's argument about being behind a tree or up a lamp post.

Chris Bryant: It does, actually, because people who had sex behind trees have used precisely those provisions to try to prove that they were having sex in privacy. The only category in the law to which that does not apply is public lavatories, which is why the clause is wrong. One further point is that by including a clause explicitly on this issue, we invite and encourage the police to waste a great deal of their time, which could be spent in other ways.
 I shall deal specifically with the amendments. This may seem odd to hon. Members, and I know that I am already testing their patience, but the definition of a public lavatory is still rather nebulous. Would all the lavatories in this building be counted as public lavatories? Would a public lavatory in a hotel be counted as a public lavatory? Would a toilet in a hotel room be counted as a public lavatory? 
 As the Under-Secretary has pointed out, and as everyone accepts, it is wholly wrong that imprisonment for up to two years should be the result of somebody being convicted of the offence in the clause. It seems curious to me to imprison anybody for any length of time for this kind of activity, and I have a question for the Under-Secretary about how it all relates to the sex offenders register. My reading of schedule 3, which refers to clause 81, is that the offence would not lead to registration on the sex offenders register, but I would like that clarified.

Neil Gerrard: I want to return to a point that my hon. Friend made about police time. That aspect of the clause concerns me. I recall a conversation two or three years ago with a senior police officer at the Metropolitan police. He told me that when he first became a police officer, he was required to spend an inordinate amount of his time in the ceilings of various public lavatories and found that a demeaning experience. I see some potential problems with certain police forces.

Chris Bryant: I am grateful to my hon. Friend, and can only agree with his point, which suggests why clause 67 is, to put it mildly, unfortunate.
 As I read it, the Government amendment to change subsection (2) would remove the requirement for there to be two people involved. It might be, for instance, that masturbation would then fall within the clause. Can the Under-Secretary clarify that? We also need to return to the issue that was raised by the hon. Member 
 for Mid-Dorset and North Poole about whether kissing counts as sexual activity. 
 I am pleased that the Government have chosen to table amendments. I wish that they had tabled an amendment for the full deletion of the clause, but I understand why they have not. Along with the Under-Secretary and all other Committee members, I do not want the message from this House to be that we want people to have the right to have sex in public lavatories. However, there is no point in including unnecessary and discriminatory clauses.

Paul Goggins: My pile of notes has multiplied in the past few minutes. I appreciate my hon. Friend's powerful speech. I shall deal with some of the points that he raised in detail. He has given us a flavour of the atmosphere that must have prevailed in the other House when this issue was debated.
 I apologise to all Committee members, but in particular to the hon. Member for Beaconsfield, for rushing through my explanation of the matter that he raised. The activity must appear to be sexual from the nature and circumstances alone, and therefore not from the person's purpose. In this case, that is irrelevant: there may be behaviour that is somewhat ambiguous—touching oneself or another person in a certain way—but we are trying to catch the most explicit kinds of sexual activity. If there is more serious sexual activity, that more ambiguous behaviour will need to come into play. That is why it occurs elsewhere in the wider definition of ''sexual''. However, in this clause, the definition is as I have outlined. 
 The hon. Member for Mid-Dorset and North Poole asked whether there will be further legislation. We currently have no intention of introducing any. We believe that our provisions are sufficient. On outraging public decency, I remind her that our amendment to the Criminal Justice Bill remains, so that power will be available. Therefore, we have almost a continuum of powers and offences. 
 The hon. Lady asked about chaste kissing in toilets—which is an interesting concept. I think that my hon. Friend the Member for Rhondda also raised that question. The magistrates dealing with that case—if such a case were to be prosecuted—would have to look at the evidence and decide whether a reasonable person would consider a kiss of that kind to be sexual. 
 I turn to the speech of my hon. Friend the Member for Rhondda. The passion in his speech is understandable. He said that the legislation is discriminatory: I disagree. However, he gave the Committee a history lesson that explained why some people might feel strongly about this issue. My sense of history on this question does not go back as far as the 16th century: it goes back to the 1960s. I am a Manchester Member of Parliament, and I have lived in that city all my life. I remember the toilets around the centre of Manchester that everybody—including the police—knew were the places where gay people had to go if they wanted to engage in sexual activity, and I remember that those people were hounded. That is the history of the sense of discrimination that surrounds this question. 
 However, I want to point out to my hon. Friend that less than a mile from those toilets in Manchester there is now a gay village. We also have Gay Pride once a year. The whole atmosphere in relation to discrimination against gay people has changed. This clause reflects that change to some degree. I understand the sense of history, but I believe that we are moving on, in particular in relation to this matter. 
 Since the introduction of the Human Rights Act 1998, the police and the Crown Prosecution Service must apply—in all laws—human rights legislation. I say to those who fear that police officers might abuse their power if this clause were to be included in the Bill that they cannot do that. The legislation is clear: they cannot operate in that discriminatory way. 
 My hon. Friend raised the question of whether sex in the park next door to the toilets would be illegal, and he subsequently referred to the No. 39 bus—I think that that was the number—which he travels home on. Where such activity would cause harassment, alarm, distress or outrage, it would be covered under existing legislation. As the hon. Member for Beaconsfield pointed out, in relation to sexual activity in a toilet, the difficulty involves what is happening behind the closed cubicle door.

Sandra Gidley: Earlier, the hon. Member for Rhondda sent me on an unfortunate train of thought. I remembered that several years ago I used to go camping frequently. I am unsure why we have this obsession with toilets, because I recall that there were communal shower blocks on some campsites where exactly the same sort of activity that is addressed in this clause could take place even today—the only difference being that it takes place in a shower cubicle, rather than a toilet cubicle. I do not understand why we are criminalising one and not the other, when the circumstances are incredibly similar.

Paul Goggins: I simply remake the point that if the activity is causing harassment, alarm, distress, or outrage, those engaging in it can be prosecuted under existing legislation. I am dealing with a specific difficulty and the fact that the clause is in the Bill. We must either knock it out or make it workable. We are proposing amendments that make it workable.
 My hon. Friend the Member for Rhondda asked about registration. The answer is no, there will be no consequence in terms of registration. On the definition of the word ''public'', in relation to a public lavatory, he will know that MPs are part of the public, therefore the toilets to which he referred in this building are public. Toilets in and near the lobby of a hotel are public toilets, because the public are able to use them. We are trying to exclude toilets that are clearly private, for example in a person's home. 
 In answer to the question of whether the offence requires two people, no, it does not, and it never did. One person is covered by this measure. 
 Finally, as a local Member of Parliament as much as anything else, I have to say that the people who come to my surgery to raise issues of disquiet about public toilets do not mention sexual activity. However, they mention dirty needles, filth, the state of the toilets and the fact that they cannot get access to them when they need them. Public lavatories are for people to use and any encumbrance that prevents them from doing so, or which causes harm, must be deprecated and dealt with. In this instance it is being dealt with in the Bill. 
 Amendment agreed to. 
 Amendments made: No. 119, in 
clause 67, page 32, line 33, leave out 'activity within subsection (2),' and insert 'an activity, and'.
 No. 120, in 
clause 67, page 32, line 35, leave out subsection (2) and insert— 
 '( ) For the purposes of this section, an activity is sexual if a reasonable person would, in all the circumstances but regardless of any person's purpose, consider it to be sexual.'.
 No. 121, in 
clause 67, page 33, line 1, leave out subsection (3).
 No. 122, in 
clause 67, page 33, line 5, leave out from 'exceeding' to end of line 7 and insert 
 'level 5 on the standard scale or both.'.—[Paul Goggins.]
 Clause 67, as amended, ordered to stand part of the Bill.

Clause 68 - Exposure

Amendment made: No. 96, in 
clause 68, page 33, line 9, leave out '(A)'.—[Paul Goggins.]

Humfrey Malins: I beg to move amendment No. 216, in
clause 68, page 33, line 10, after 'genitals', insert 'in a public place'.

Roger Gale: With this it will be convenient to discuss the following:
 Amendment No. 184, in 
clause 68, page 33, line 11, leave out 'or' and insert 'and'.
 Amendment No. 226, in 
clause 68, page 33, line 16, leave out paragraph (b).

Humfrey Malins: I shall be brief. I do not wish to proceed further with amendment No. 216.
 Amendment No. 226 would knock out the indictable nature of the offence. I wonder whether it would be more appropriate for this offence to be summary only. I cannot think of any cases in which it should be tried on indictment—they could all be covered summarily. I shall seek permission to withdraw No. 216 in a moment, but I should like the Minister to comment on why he thinks that the offences should sometimes be indictable.

Roger Gale: Before we start the debate I should point out to the hon. Gentleman that if he wishes to press amendment No. 226 to a vote, he will have to move it formally in due course.

Paul Goggins: I shall respond to this group of amendments in the spirit in which they were moved.
 Amendment No. 216 would restrict the offence of exposure to public places. There may be examples where such an occurrence in a private place could be distressing. One thinks of a child having a friend to stay and an incident happens. I take it that the hon. Gentleman accepts that.

Dominic Grieve: The Minister will be aware that this is one of the clauses that caused naturists anxiety, and they have lobbied Members about it. I am satisfied that the protection afforded in paragraph (b), which says,
''he knows or intends that someone will see them and be caused alarm or distress'',
 is sufficient to ensure that naturists will not be wrongly criminalised as a result of the clause. Is the Under-Secretary also satisfied about that?

Paul Goggins: I have looked at the matter in great detail and have replied to many letters on the subject, and I am completely satisfied that the clause will allay any fears that naturists have that they could somehow be captured by the legislation.
 The hon. Member for Woking (Mr. Malins) made a point about summary-only offences. That is a familiar debate to the Committee. We will attempt to ensure consistency in the Bill, but I should just say that it is not true that the activity would always be of a less serious nature. There could be situations in which it was more serious. Because of that, we want to give maximum scope to courts, so that the prosecutor and court could make the appropriate decision. We want to leave that breadth so that it is open and available to them.

Annette Brooke: I realise that I cannot move an amendment, but I should like to refer to one, if that is satisfactory.
 I have received many representations from naturists, probably because I am lucky enough to live close to a beautiful naturist beach in Studland. Quite a few people retire to the locality in which I live because of it. There are still enormous concerns about the Bill, and I hope that the Under-Secretary will put a few more words on record to give comfort to the naturists. I understand that there are at least 5 million naturists in this country, although it is difficult to know the total. We are addressing the concerns of a great number of people. 
 I attempted to table a simple amendment to raise an issue that relates to Studland beach. There is a nice walk, which starts with a ferry trip, from Poole to Swanage. That walk goes through the naturist beach, and as one approaches the beach, there is a sign that says that there are naturists ahead, and says how far the area extends. In fact, there are postcards of the sign; I meant to buy one, but they have sold out, so the beach is well known. 
 The point is that even on the acknowledged naturist sites it is absolutely clear that a naturist knows that someone will see them. I must say that some people, once they reach the naturist beach, find it difficult to cope with the situation. I have walked the beach for many years with my children and we enjoy doing so, but I have sometimes taken guests who have reacted; 
 there are no two ways about it. That is why I simply suggest the words, ''knows and intends''. I should be interested to hear a response to that suggestion. 
 In more general terms, we must take on board the fear that the Bill will be used to suppress naturism. Because the offences are in the Bill as we have defined them, there is a fear that landowners, and even local authorities, will take the easy way out and will not be prepared to offer facilities.

Stephen Hesford: I have had no correspondence on the matter, perhaps because, unlike the hon. Lady, I do not have a naturist beach in my constituency. Is there any evidence from naturists that, under existing law—we have heard what existing law can contain and be aimed at—they have been suppressed and harassed, and that the Bill would reinforce that? Or is it suggested that there has been no harassment or suppression in the past, but that it might start now because of the Bill?

Annette Brooke: I think that the concern is that, with such a rightly high-profile Bill, which rightly has such an emphasis on children, people will be much more cautious about what they give permission for on their land. That is why there is worry that the clause could have an unintended consequence of suppressing naturism. We are aware that naturists wanted it to have a sexual gratification element, so that they were definitively excluded from it. In turn, the Home Affairs Committee considered the matter extensively and listened to the evidence, but did not decide that that was necessary. However, it certainly wanted to protect naturism and felt that it was undesirable to criminalise it. I should be grateful if the Under-Secretary would say why it is considered unnecessary to introduce a further qualification relating to sexual gratification or to whether the activity was designed wilfully to provoke another person into a state of fear, alarm and distress.
 Furthermore, naturists have said that if, for example, one of their members accepted a caution on a beach—which he might do as a simple way out of a difficult situation, rather than arguing—if we follow that through and put the clause with clause 81(1)(d) and clause 83, there is a fear that it could lead to someone being placed on the sex offenders register. It is important for the Under-Secretary to allay such concerns and put his comments on the record. I reiterate that I have a good mailbag on the issue and the fears remain. However, there is much gratitude for what has already been done to improve the clause.

Roger Gale: Order. At the start of her remarks, the hon. Lady said that she could not move her amendment. There is a point of procedure whereby, when amendments are debated together, it is open to her to move her amendment formally at the end of the debate if she so chooses and to inform the Chair of her intentions.

John Randall: The hon. Lady described a naturist beach. She said that there was a sign up about it. One of my innocent hobbies, which I share with the Government Whip, is birdwatching. The problem will probably apply to the next clause,
 but if I were wandering along that beach with binoculars, would I be caught by the Bill?

Paul Goggins: At this point, I shall respond to the hon. Lady. The key point about naturists and the reason why I am confident that they will not be caught by the clause is that, unless a naturist intends to cause alarm to others, he will not be caught. The key point is the intention. We accept in good faith that it is not the intention of naturists to cause alarm or distress. I hope that I have reiterated my assurance to the Committee that I believe that naturists will not be affected by the Bill.

Dominic Grieve: The hon. Lady may have a point that the Under-Secretary has not quite answered. What about a naturist who occupies a beach in a public thoroughfare that is traditionally used by naturists? Clearly, he goes there intentionally to expose his genitals, but he knows that an individual walks along that beach who suffers great alarm and distress each time he sees the naturist. Does the naturist commit the offence because he knows that someone will see his genitals and be caused alarm or distress, but decides that, because the person is so unreasonable, he will go ahead with his activities? That ties in with the hon. Lady's amendment about whether the clause should read ''knows and intends'' as opposed to ''knows or intends''. The Under-Secretary did not answer that point.

Paul Goggins: We are back to the issue of whether the naturist ''intends''. In the scenario outlined by the hon. Gentleman, there is clearly no intention.

Dominic Grieve: This is critical, and the hon. Lady's point is good. No prosecution would ever lie, but it is technically possible to commit the offence without any intention at all if a person exposes their genitals in circumstances where they know that someone will see them and be caused alarm or distress. We come back to the question of how reasonable that alarm or distress may be. People could be walking backwards and forwards on a nearby public footpath, and the naturists who occupy the beach could be in a constant state of anxiety that all it needs is for someone to see them and say that they are alarmed or distressed and—hey presto—they have committed the offence.

Paul Goggins: The hon. Gentleman seems to have some enthusiasm for his argument. I shall respond to the question why we do not state knowledge as well as intention. It may allay the concerns of hon. Members, including those of the hon. Gentleman.
 If we added the requirement of knowledge, it would mean that in every case of prosecution the witness would have to give evidence that they were caused alarm or distress. That would allow an escape route or get-out clause for a genuine offender because there would have to be a witness in the witness box demonstrating and giving evidence that the event had caused them distress. That would not be appropriate. I hope that offers some reassurance.

Chris Bryant: I am grateful to my hon. Friend, who has made an important point, which tells against the hon. Lady. The only time that I have been to Studland bay was when I did a parachute jump out of the back of a Hercules aircraft and we landed there. Since I was dressed as a vicar at the time, naturists on the beach might well have thought that they were about to cause offence and alarm. Presumably, there is also the matter of someone lying asleep on a nudist beach who could not be thought to have any intention, but who might cause offence.

Paul Goggins: I simply make the point again that offence is certainly not their intention and it is certainly not done knowingly. I do not believe that the clause as drafted gives any room for concern, and the naturists going about their normal activities on the beautiful beach in the hon. Lady's constituency have nothing to worry about.
 The hon. Lady raised the issue of sexual gratification and advanced the argument for why—

Sandra Gidley: I am still not convinced by the hon. Gentleman, and I wonder whether he can answer this question. A person might have to walk along the beach at Studland or elsewhere regularly, but they might not like it and be distressed, and they could decide to bring a prosecution. The hon. Member for Beaconsfield is right: the person being prosecuted might have known that the other person was distressed, and that means—surely—that he is committing an offence. However, the nudist may not have intended to cause any great embarrassment or distress, so the problem is doing the watching rather than being watched.

Paul Goggins: I am in danger of disappearing down a plughole here, but I shall make a valiant attempt to respond.
 In relation to knowledge, there must be alarm or distress. On proving intent, it does not need to be proved that there was distress. In the hon. Lady's question, it was clearly not the intention of the person she described to cause alarm or distress. Naturists do not need to fear that they will be caught by this clause.

John Randall: I recently read about the naked rambler. I do not know whether he was trying to cause harm or distress, or whatever. My impression from the reports was that he was not, but that he caused it anyway.

Paul Goggins: Well, it is his intention that matters. As I recall, he intended to walk from Land's End to John O'Groats, not to cause alarm or distress, so he would not be covered by this piece of legislation.

Hilton Dawson: Did he wear boots?

Paul Goggins: Indeed, he wore a very sturdy pair of boots.
 The reason why we did not see fit to include sexual gratification in this part of the Bill is that exposure can be part of an act of aggression, or loutishness. In such circumstances, there would be the intention of causing alarm or distress—and that should be covered. Such individuals would be missed out if there only had to be sexual gratification. 
 The hon. Member for Mid-Dorset and North Poole also asked about registration. Exposure can, in certain circumstances, be a serious, distressing offence, so it may be appropriate for there to be registration. Registration would apply if the victim were under 18, or if the offence were so serious that it warranted a prison sentence or a 12-month community penalty. Such penalties would signal that it was an extremely serious offence. For less serious offences there would not be registration.

Humfrey Malins: It has been a good debate—we may return to it on Report. I pause only to say that I am not entirely sure whether that is ever worth a trial on indictment. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn.

Annette Brooke: I do not wish to press my amendment to a vote, Mr. Gale.
 Clause 68, as amended, ordered to stand part of the Bill. 
 Clause 69 ordered to stand part of the Bill.

Clause 70 - Voyeurism: interpretation

Amendments made: No. 97, in 
clause 70, page 34, line 2, leave out subsection (1).
 No. 98, in 
clause 70, page 34, line 3, at beginning insert 
 'For the purposes of section 69,'.—[Paul Goggins.]

Dominic Grieve: I beg to move amendment No. 240, in
clause 70, page 34, line 3, after 
 'structure', insert 'or enclosed space'.

Dominic Grieve: My concern, which is, perhaps, the reverse of that expressed in the previous debate, is about the definitions clause on voyeurism. Clause 70(2) says:
''A person is doing a private act if the person is in a structure''.
 What is a structure? The Under-Secretary may be able to help us on that. When I read the word structure, giving it its ordinary meaning, I associate it with something that has a wall and a roof. I am concerned that this definition appears to sanction or allow voyeurism in circumstances in which privacy was provided by an enclosed space, and the voyeur, for whatever reason, decided to intrude on that enclosed space by, for example, making a hole in a partition or wall. To make the position clear we should include the words ''enclosed space'', which I would take to mean a garden, if it were surrounded by a high wall and could not be overlooked. The words ''enclosed space'' must be read in conjunction with what comes after them— 
''in the circumstances, would reasonably be expected to provide privacy''.
 Obviously, a garden wall surrounded by tower blocks could not reasonably be expected to provide privacy; however, a garden could be expected to do so if it were not overlooked, and if the only way that one could overlook it was by getting a tall ladder and climbing up it in order to peer in. We should think about extending the protection to that setting. 
 That point—to come back to our earlier debate—has relevance to naturists, who may wish to congregate in an area that is not a structure as I would interpret it. We should consider extending the protection to those doing private acts in enclosed spaces if, in the circumstances, the spaces could be reasonably expected to provide privacy. That is an extension of the definition of ''structure'' that would be proper. 
 The Under-Secretary may try to reassure me that ''structure'' would encompass an enclosed area but, using my ordinary understand of English, I do not think that it does; I think that a structure denotes something that has walls and a roof, although I accept that one might use the definition of a ruined structure that was roofless. The hon. Gentleman may be able to help me. I would like to provide the maximum protection to people in areas that they can reasonably consider private. Obviously, if a garden is surrounded by a fence that can be looked over by anyone who looks around, those in it should not have that protection. 
 However, considering the surrounding circumstances reasonably, if anyone wishing to peer in has to carry out what I would describe as a pretty abnormal activity, such as getting on a ladder, there should be a possibility of extending that definition. I accept, however, that if a structure requires a roof, there is the difficulty of people flying over by helicopter and things of that sort, and that might present a problem. However, before we agree to this laudable clause, I hope that we will take an opportunity to see whether the definition could sensibly be extended.

Paul Goggins: The hon. Gentleman raises an interesting question about how tightly we have defined ''structure''. We have intended ''structure'' to include
''a tent, vehicle or vessel or other temporary or movable structure''
 as well as the more obvious places that the hon. Gentleman mentioned, including a house and a cubicle. That is because we want to restrict criminality for that offence to those who go to considerable lengths to spy on others who are engaged in private acts, rather than people who, to return to the point made by the hon. Member for Woking, just stumble across people while they are out and about. 
 The problem with the amendment is what ''enclosed space'' would mean. The amendment offers no definition of what that might be. Perhaps the hon. Gentleman will illuminate.

Dominic Grieve: I rather hoped that the clause was self-defining because of the useful words that follow. The clause would read an ''enclosed space which, in the circumstances, would reasonably be expected to provide privacy''.

Vera Baird: A place.

Dominic Grieve: I hear the hon. and learned Lady say ''a place'', and that was an alternative that I thought about. However, that worried me, because it raises the question of people saying, ''Well, it's a completely open area, but I never expected someone to come
 across me.'' I am going to Scotland this weekend. If, when I am in the moors, I stumble at 1,100 m on a couple making love, I rather hope that I will not be regarded as a voyeur, because I suppose that they might reasonably have said that they reasonably expected the place to provide privacy and had not envisaged that I would turn up. That is why the idea of enclosure seemed reasonable to me.

Paul Goggins: The word ''enclosure'' is interesting, because it gives one the impression of a confined and defined space, but a football stadium could be described as an enclosed space—which would be an interesting definition in relation to this clause—as could a fenced-off field. We need a definition that is workable for the offence.

Dominic Grieve: Does not the caveat that follows—
''reasonably be expected to provide privacy''—
 in fact provide that definition? A football stadium may be an enclosed space but, unless all the doors have been locked and bolted and everyone else excluded, no one could possibly say that it could reasonably be expected to provide privacy, and nor could a field that is surrounded merely by a low hedge or an open fence. On the other hand, if there was a walled garden with a door into it rather than a grille and that was not overlooked by any buildings or a natural feature that someone could stand on to peer in, it would be a voyeuristic activity to get a ladder and climb up in order to watch people engaging in private acts.

Paul Goggins: The hon. Gentleman makes a good point. [Interruption.]

Roger Gale: Order. Would the gentleman leave the Committee Room, please?

Paul Goggins: The Government's view is simply that the amendment would make the definition too wide. We want to remove possible areas of doubt. I have given the hon. Gentleman a couple of examples of where there could be doubt—although my examples might have been a bit extreme. There may be an area of confusion, and we do not want that to be the case. We do not want to describe someone's private home or those very confined spaces with which we are familiar: we want to extend the definition slightly, but we do not want to make it so broad that there would become considerable doubt in relation to it.

Vera Baird: I can see the problem that the hon. Member for Beaconsfield outlines, and I share his concern. Someone who accidentally stumbles over a person committing a private act will not be guilty of the offence as defined in clause 69(1), where they must have the purpose of obtaining sexual gratification as they observe the private act. If someone did that by accident, they would not have done it for that purpose.
 I am concerned about the women's pond on Hampstead heath. It is fenced off and behind trees, but it is not in any sort of structure. Women frequently sunbathe and bathe naked there, and it is intended that only women should be present. That would not be covered by this definition of structure.

Paul Goggins: Notwithstanding the importance of providing a clear definition in relation to enclosed space, in keeping with the spirit of co-operation that has been a mark of our discussions over recent days we will reflect further on whether we might define this a little more broadly—not so broadly that it includes the football stadium, but so that it addresses some of the points raised by the hon. Member for Beaconsfield.

Chris Bryant: I urge my hon. Friend not to go down the road that I think that my hon. and learned Friend the Member for Redcar (Vera Baird) has advocated, because the example that has been offered would not count as a private act in the context of the clause.

Paul Goggins: That is the dilemma that we face. How tightly or broadly do we define this? We want to err on the side of tightness because otherwise there would be too much confusion. However, I want to reflect on whether we have defined this a tad too tightly.

Dominic Grieve: I am grateful to the Under-Secretary for agreeing to think about this. The amendment was not meant to be particularly controversial: I was trying to ensure that the intention—which I fully understand—behind these clauses was met. The Under-Secretary has confirmed that ''a structure'' must have a roof and that it must be enclosed on all sides. I wonder whether the scope should be widened, because people are entitled to protection from voyeurs in other settings. The hon. and learned Lady referred to Hampstead heath. There are many other historic locations where traditionally it was permissible—even in Victorian times—for people to take off their clothes in single-sex company. Screens were provided, which could not reasonably be looked through unless someone made a determined attempt to do so. If it can be provided, there should be a measure of protection for such people, too.
 While I appreciate the Under-Secretary's anxiety, I am much more comfortable with the fact that my proposal would not lead to the mischief that he is worried about. Indeed, given the other issues that are involved, I am even half persuaded by what the hon. and learned Lady said about the use of ''place''. However, I still want to think more carefully about that. I am grateful to the hon. Gentleman for agreeing to think through the matter further. Clearly, we have a common purpose in what we want to achieve, but words matter in such a setting. I beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Amendments made: No. 99, in 
clause 70, page 34, line 10, leave out subsection (3).
 No. 100, in 
clause 70, page 34, leave out line 13.—[Paul Goggins.]
 Clause 70, as amended, ordered to stand part of the Bill. 
 Clause 71 ordered to stand part of the Bill.

Clause 72 - Sexual penetration of a corpse

Question proposed, That the clause stand part of the Bill.

John Randall: I know that sometimes members of the Committee wish that I would not speak, and I must say that, on this occasion, I wish that I did not have to speak. I shall not take long.
 The Under-Secretary and other members of the Committee may have read in the newspapers sometime around Easter about an incident at Hillingdon hospital when a body of an elderly Muslim lady was discovered to be wrapped in bacon. Obviously, that caused much distress. Subsequent investigation by the police revealed incidence of a much wider abuse of people in that mortuary, which had been happening for many years. Photographs were seized as, I believe, were body parts. I think that the matter is still going through the courts, so I shall not comment on individual cases. 
 I discovered that there is no protection for dead bodies, as such. It was difficult for the CPS to come up with a crime that had been committed. I appreciate that I am providing a good opportunity for you to slap me down, Mr. Gale, as some offences were not of a sexual nature and I appreciate that the Bill is perhaps not the appropriate vehicle under which to discuss them. However, there is a serious problem. As we can imagine, the offence that was committed against the body to which I have referred caused as much distress to the relatives as sexual penetration of a corpse would cause. 
 Some matters that were seized may have been of a sexual nature. I note that the clause deals only with penetration of a corpse, and I do not think that mention of photographs or images being an offence is mentioned elsewhere in the Bill. I can understand the legalistic problems involved, because a dead body does not have rights. It does not belong to anyone. 
 Even within the confines of the clause, consideration must be given to those who work in a mortuary and have responsibility. We accept that such a job is not pleasant, but those people have responsibility and are placed in a position of trust. We must bear in mind the problems caused if that trust were abused. One of the problems in my constituency and the surrounding area was that lots of people had dead loved ones who had been in that mortuary for a short time. They are worried that something might have happened to their loved ones while in the mortuary. 
 Can the Under-Secretary and the Home Office consider such a matter to see whether relevant provisions may be included in the Bill? It is something that not only my constituents and I, but the CPS and the police, would like examined.

Roger Gale: Order. The hon. Gentleman described something that was clearly distressing and offensive. However, I, not being a parliamentary draftsman, am not entirely certain whether it actually falls within the purposes of the Bill. The Under-
 Secretary may construe under connected purposes that it does, in which case he is welcome to reply.

Paul Goggins: I shall accept your invitation, Mr. Gale. Those of us who do not live near the hon. Gentleman's constituency none the less read the reports in the newspapers and can only share in the sense of distress that there must have been in the community.
 Existing legislation covers the exhumation of dead bodies without lawful authority, but there is no other protection for the body of a person once they have died. There is currently no law covering the sexual penetration of a dead human body or part of a dead human body. I am sure that the hon. Gentleman and other members of the Committee will agree that that is a somewhat surprising omission from the criminal law, since it represents a violation of the respect that should be shown for human remains. When such behaviour comes to light, it is profoundly distressing for the family of the dead person. In Committee, we are introducing an important new offence, which I am sure will go some way to reassuring the hon. Gentleman's constituents. 
 Question put and agreed to. 
 Clause 72 ordered to stand part of the Bill.

Clause 73 - Offences outside the United Kingdom

Humfrey Malins: I beg to move amendment No. 214, in
clause 73, page 35, line 12, after first 'or', insert 'lawfully'.
 As I see it, clause 73 indicates that if a certain category of person commits an offence abroad, they are, so to speak, guilty in this country and can be charged. Under clause 2, someone who is resident in the UK—even if they are not lawfully resident in the UK—could also be charged. I wonder whether that is a good idea in principle. 
 I can understand why a British citizen who commits an offence in this country should be charged and prosecuted. I can equally understand why a British citizen, or someone who is lawfully resident here, who commits an offence abroad can be charged in this country. If we are discussing charging someone who is unlawfully resident in this country with an offence committed abroad, issues such as taxpayers' money and wasting time come into play. 
 If someone who is unlawfully resident in this country has committed an offence abroad, it would be much simpler to use our natural powers to deal with them. If those who are here unlawfully were charged in this country with an offence committed abroad, they would go through the full panoply of legal aid, which would impose a cost on the taxpayer. I wonder whether it would be worth it. Does the Under-Secretary envisage that people who are resident in this country unlawfully would fall within the ambit of the clause?

Paul Goggins: In reading the hon. Gentleman's amendment, I was interested in the concept of an unlawful British citizen. One is either lawfully a British citizen or one is not.

Humfrey Malins: Subsection (2) states,
''or has since become, a British citizen or resident in the United Kingdom'',
 so I did not assume that a resident in the United Kingdom meant a British citizen; I thought that it was a separate category.

Paul Goggins: But certainly. ''Resident in the United Kingdom'' refers to persons who are lawfully resident in the United Kingdom, but who are not British citizens. We are not seeking to prosecute someone who arrives in the UK, for child sex offences committed in a country that they have come from or travelled through. We must draw a line on jurisdiction.

Humfrey Malins: In that case, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 73 ordered to stand part of the Bill.

Schedule 2 - Sexual offences to which section 73 applies

Paul Goggins: I beg to move amendment No. 101, in
schedule 2, page 76, line 15, leave out '15 and'.
 This is a minor drafting amendment. Paragraph 1 of schedule 2 lists the offences in England and Wales to which section 73 applies so that where one of the offences specified in paragraph 1 is committed in a foreign country with an equivalent offence, the offence may be tried in a domestic court. At present, sub-paragraph (a) refers to offences under clauses 6 to 15 and 17. The amendment simply makes that reference neater by changing it to offences under clauses 6 to 17. The amendment makes no change to the substance of the Bill. 
 Amendment agreed to. 
 Schedule 2, as amended, agreed to. 
 Clause 75 ordered to stand part of the Bill.

Clause 79 - ''Sexual''

Paul Goggins: I beg to move amendment No. 123, in
clause 79, page 37, line 33, after 'Part', insert '(except section 67)'.

Roger Gale: With this it will be convenient to take Government amendment No. 124.

Paul Goggins: Hon. Members may be aware that the way in which the definition of ''sexual'' in clause 79 is currently framed caused concern in the other place. It has already been a matter of some debate in this Committee. One of the noble Lords suggested that the clause's wording would be difficult for juries to understand, which could potentially involve their reaching the wrong decision on whether a particular act was sexual. There was also some confusion over the phrase ''(at least)'' in clause 79(1)(a). We do not want to interfere with the practical effect of clause 79 because we believe that it requires the jury to apply the right tests when deciding whether an activity was sexual. However, we have no wish to complicate matters for the jury and are happy to reword clause 79 in the interests of clarity.
 Clause 79 provides a definition of ''sexual'' for the purpose of the offences in part 1 and is intended broadly to reflect the definition of ''indecent'' in the context of indecent assault in current case law. The jury are required to use three criteria in their assessment of whether an activity was sexual: whether an act is sexual by its own nature or is only ambiguously sexual by nature; the circumstances in which the act took place; and the purpose of any person in relation to the act. In short, the test covers all activity that a reasonable person would consider to be sexual. However, it rules out any activity that a reasonable person would never consider sexual by reason of its nature, such as removing a person's shoes. That ensures that we do not capture activity that no reasonable person would consider to be sexual, and may have been sexual only because the defendant happened to have a secret fetish not made known to the victim—in that example, a foot fetish. 
 At present the test in clause 79 works as follows. Its first part, in paragraph (a), covers any fundamentally sexual activity such as sexual intercourse or masturbation. In such cases, a reasonable person would be in no doubt, simply because of the nature of the act. Both the tests at paragraph (a)—that the nature of the act is sexual and that because of its nature a reasonable person would consider it sexual—would be met. As well as activity that is obviously sexual by nature, the clause also covers acts that may or may not be sexual depending on the circumstances and/or purposes of any person. For example, digital penetration of a woman's vagina by a doctor may be fundamental to diagnosis or treatment, but could also be wholly irrelevant and only carried out for the doctor's sexual gratification. The jury must therefore consider the circumstances and the doctor's purpose. Similarly, touching a person's thigh is by its nature possibly sexual, but the circumstances in which the touching takes place, and the reason for it, will determine whether it is in fact a sexual act. 
 As currently drafted, the whole of clause 79, including paragraphs (a) and (b), is relevant to all decisions on whether an act is sexual. Although the new version of clause 79 continues to apply the same tests, it clearly separates activity that is sexual by nature, and would be considered to be so by any reasonable person regardless of the circumstances in which it takes place or the purpose of any person in relation to it, from activity that is sexual only because of those circumstances or that purpose. That has exactly the same effect as the current test but will be easier for juries to understand. That should ensure that only activities that a reasonable person would consider to be sexual will fall within the scope of the offence in part 1. 
 Amendment No. 123 is technical and would disapply clause 79 from the offence of sexual activity in a public lavatory, which was debated earlier at clause 67. Hon. Members will recall that by virtue of amendment No. 120, clause 67 now incorporates its own definition of what constitutes sexual activity, which is appropriate to the kind of offending behaviour covered by that offence. I do not intend to speak any further to amendment No. 123, because we 
 discussed the relevant matters in detail in connection with amendment No. 120.

Dominic Grieve: I simply welcome the amendments. There was no doubt in my mind when I first read the Bill that the definition of the word ''sexual'' in clause 79 as it stood would be a potential disaster area in a jury trial. I just about understood what it meant, but those who represented strongly that it did not read easily and would be very difficult to explain to a jury were absolutely right. One has only to consider the definition in amendment No. 124 to see that it is much easier to understand.
 Amendment agreed to. 
 Amendment made: No. 124, in 
clause 79, page 37, line 34, leave out from 'if' to end of line 39 and insert 
 'a reasonable person would consider that— 
 (a) whatever its circumstances or any person's purpose in relation to it, it is because of its nature sexual, or 
 (b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.'.—[Paul Goggins.]
 Clause 79, as amended, ordered to stand part of the Bill.

Clause 80 - Part 1: general interpretation

Amendments made: No. 102, in 
clause 80, page 38, line 3, at end insert— 
 '( ) ''Image'' means a moving or still image and includes an image produced by any means and, where the context permits, a three-dimensional image. 
 ( ) References to an image of a person include references to an image of an imaginary person.'.
 No. 103, in 
clause 80, page 38, line 6, leave out subsection (5) and insert— 
 '( ) References to observation (however expressed) are to observation whether direct or by looking at an image.'.—[Paul Goggins.]
 Clause 80, as amended, ordered to stand part of the Bill.

Roger Gale: Order. Before we leave, I wish all Committee members a productive three weeks and, perhaps as importantly, remind them that, for the purposes of the House, Tuesday 14 October will be a Monday in terms of sitting times. Therefore the Committee will sit not at 10 minutes past 9, but at 10.30 am. I am pleased to be able to say that I will be in the Chair.
 Further consideration adjourned.—[Mr. Heppell.] 
 Adjourned accordingly at twenty-three minutes to Five o'clock till Tuesday 14 October at half-past Ten o'clock.